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Guest Vern Edwards

So the AC in the OP’s storage unit doesn’t work and his outfit wants to replace it. The work has been estimated to cost about $45,000.

Here is the original question:

Because the HVAC units are not going in real property, are you buying this as a commodity with incidental installation even if it require trademan such as plumbers, electrician and HVAC techs to do the install?

In other words, should the replacement be a supply contract or a construction contract?

Now look at the definition of “building or work” that Don provided from FAR 2.101. It’s only three sentences long. First, a building or work is a “construction activity,” not a thing. Specifically, its construction activity that relates to a list of things as diverse as lighthouses and buoys (??? do you “construct” buoys???).

Now look at the first sentence of the definition of “construction” as defined in FAR 2.101:

“Construction” means construction, alteration, or repair (including dredging, excavating, and painting) of buildings, structures, or other real property. For purposes of this definition, the terms “buildings, structures, or other real property” include, but are not limited to, improvements of all types, such as bridges, dams, plants, highways, parkways, streets, subways, tunnels, sewers, mains, power lines, cemeteries, pumping stations, railways, airport facilities, terminals, docks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, canals, and channels. Construction does not include the manufacture, production, furnishing, construction, alteration, repair, processing, or assembling of vessels, aircraft, or other kinds of personal property (except that for use in subpart 22.5, see the definition at 22.502).

Emphasis added. So, what’s the definition of construction in FAR 22.502?

“Construction” means construction, rehabilitation, alteration, conversion, extension, repair, or improvement of buildings, highways, or other real property.

Emphasis added. Now look at the definition of supplies from FAR 2.101:

“Supplies” means all property except land or interest in land. It includes (but is not limited to) public works, buildings, and facilities; ships, floating equipment, and vessels of every character, type, and description, together with parts and accessories; aircraft and aircraft parts, accessories, and equipment; machine tools; and the alteration or installation of any of the foregoing.

Emphasis added.

Hmmm, my real property people say that the manufactured storage (facility, structure, unit, building, shed, etc., whatever) is not real property. Black’s Law Dictionary 9th ed. defines real property as follows:

Land and anything growing on, attached to, or erected on it, excluding anything that may be severed without injury to the land.

Emphasis added.

The OP said that the storage thingy has no foundation (Post #3), so it is not attached to the land and presumably can be removed without injury to the land. Bottom line -- it’s personal property. Well, then, doing something to it cannot be construction according to the definition in FAR 2.101, which means that doing something to it cannot be a “construction activity” as used in the definition of “building or work,” which means that doing something to it is not a “building or work.”

Now, let me think, what would be easier to award and administer – a $45,000 construction contract or a $45,000 supply contract? Would classifying the acquisition as for supplies be clearly wrong? Not to my mind. In fact, it appears that calling it construction would be clearly wrong.

If I’m in charge of that contracting office I know what I’d do. I’d proceed with an acquisition of commercial items in a quick minute and with no doubts or regrets, unless someone showed me something quite specific and persuasive to the effect that DOL has already found that kind of project to be subject to Davis-Bacon.

Could I be wrong? Sure, I've been in this business long enough to know that things are complicated. But I'm not wrong until someone proves it.

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joel,

I think that the definition of "building or work" is broad enough to encompass prefabricated/temporary buildings. According to All-Agency Memorandum No. 130 issued by the DoL, "Building Construction" includes prefabricated buildings. Also, in a letter to the Postal Service, the Comptroller General said that it didn't matter whether a structure was permanent or temporary for the DBA to apply. The decision stated as follows:

WITH RESPECT TO WHETHER THE MAILBOXES IN QUESTION ARE PUBLIC WORKS, THE DEFINITIONS SUPPLIED BY LABOR'S REGULATION AT 29 CFR 5.2(F) PROVIDE THAT THE TERMS ‘BUILDING‘ OR ‘WORK‘ INCLUDE WITHOUT LIMITATION BUILDINGS, STRUCTURES AND IMPROVEMENTS OF ALL TYPES, SUCH AS BRIDGES, DAMS, PLANTS, HIGHWAYS, PARKWAYS, STREETS, SUBWAYS, TUNNELS, SEWERS, MAINS, POWER LINES, PUMPING STATIONS, RAILWAYS, AIRPORTS, TERMINALS, DOCKS, PIERS, WHARVES, WAYS, LIGHTHOUSES, BUOYS, JETTIES, BREAKWATERS, LEVEES, CANALS, DREDGING, SHORING, REHABILITATION AND REACTIVATION OF PLANTS, SCAFFOLDING, DRILLING, BLASTING, EXCAVATING, CLEARING, AND LANDSCAPING. THESE ILLUSTRATIONS APPEAR TO CONTEMPLATE THAT THE TERM ‘PUBLIC WORK‘ SHOULD ENCOMPASS ANY GOVERNMENT-OWNED FACILITY NECESSARY FOR CARRYING ON COMMUNITY LIFE AND TO COVER ANY ARTICLE OR STRUCTURE WHICH IS PLACED, EITHER PERMANENTLY OR TEMPORARILY, AT A PARTICULAR LOCATION TO SERVE A PUBLIC PURPOSE. WE FIND NO REASON TO DISAGREE WITH THIS CONCEPT, AND ANY ATTEMPT TO FURTHER DISTINGUISH BETWEEN MANUFACTURED AND CONSTRUCTED ITEMS IN THESE CIRCUMSTANCES (AS CONTENDED BY YOUR GENERAL COUNSEL) WOULD THEREFORE BE UNWARRANTED, SINCE IT IS OUR OPINION THAT A MANUFACTURED OBJECT MAY, UPON BEING INSTALLED AT A SPECIFIC LOCATION FOR A PUBLIC USE OR PURPOSE, BECOME A PUBLIC WORK.

Both the memorandum and the letter date back to the 1970s, so it's possible that the DoL and/or the GAO have changed their minds. I could not find evidence of this, however.

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Wow, it isn't easy is it - after the 2 posts above with opposite views. Of course, the manufacturing of the units off-site isn't subject to DBA and I'm certain that the manufacturing process isn't considered to be construction.

I am guessing that the mail boxes in question are those familiar post office boxes with the push in drop slots that are still out on the streets. They are bolted down to a sidewalk or concrete pad.

Vern, not that it matters, but the total estimate is $30k with $15k being the price of the 3 units "and the rest labor".

I will try contacting Wage and Hour Division if nobody else will.

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Guest Vern Edwards

I spoke with Don on the phone. I will not be persuaded by a 1071 GAO advisory opinion. The GAO did not then and has not now the authority to interpret Davis-Bacon; GAO procurement decisions are not binding; and we don't know what 29 CFR 5.2(f) said in 1971.

Don has more to say about other aspects of the issue, but I'll let him say it.

Joel, you're right about the government estimate. Thanks. But I want to discourage you from calling the wage and hour division. You might put the OP in a bad spot. Let him do that if he wants to. It's not really your business. Besides, why should we be persuaded by an informal discussion with who knows who at wage and hour?

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With the total estimate being $30k with $15k being the price of the 3 units "and the rest labor", then the labor wouldn't be incidental to the purchasing of supplies, and if performed on Government property would have to be covered by either DBA or SCA. Since it's not a building or public work, then it would not be DBA. The definition of 23410 HEATING, VENTILATION, AND AIR-CONDITIONING MECHANIC, in the SCA DIRECTORY OF OCCUPATIONS reads: "The Heating, Ventilation, and Air-Conditioning Mechanic installs, services and repairs environmental-control systems..." So I would say the installation would be considered service work covered by SCA.

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I think Vern is correct that this might be classified as a supply contract.

Here are some reasons why the contract classification and work classifications are confusing here. Even if it is a supply contract. I think that a firm that does business as a dealer/installer/construction company would likely be the Contractor and will supply and install the new equipment. A manufacturer generally won't contract to supply and install three residential A/C Systems and be responsible for warranties, workmanship, etc. Its authorized dealers provide and perform all of those functions that we would contract for. The question to me would be "Is this a public building or public work or is it not for purposes of application of the DBA?"

1. What constitutes "construction" as a type of acquisition (e.g., a constructon contract or construction as an activity within a broader scope of work) from the definition of "construction" in FAR 2.101 (emphasis added):

“ 'Construction' means construction, alteration, or repair (including dredging, excavating, and painting) of buildings, structures, or other real property. For purposes of this definition, the terms “buildings, structures, or other real property” include, but are not limited to, improvements of all types, such as bridges, dams, plants, highways, parkways, streets, subways, tunnels, sewers, mains, power lines, cemeteries, pumping stations, railways, airport facilities, terminals, docks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, canals, and channels..."

2. BUT - a relocatable building is classified as personal property under (at least) DoD and the individual services' regulations. For Army, see AR 420-1, Chapter 6, Section IV. Note that exterior utilities, permanent foundations and other supporting work for the relocatable may be classified as real property. We don't know if this is a DoD storage facility. But I bet that there is some consistency within many of the federal government agencies.

3. Now, continue reading the definition of construction in FAR 2.101. It excludes repairs to personal property from the definition of "construction" contracting:

Construction does not include the manufacture, production, furnishing, construction, alteration, repair, processing, or assembling of vessels, aircraft, or other kinds of personal property (except that for use in Subpart 22.5, see definition at 22.502).

4. The DoD and the Services classify replacement of a failed air conditioning system in a building that is real property as "repair" as distinct from "construction" for reasons other than contracting under FAR. Due to various statutory, regulatory, and administrative restrictions on types and sources of funding, "a clear distinction must be made between maintenance, repair, and construction work". As stated above, both repairs and construction related to real property would normally be classified as construction for purposes of contracting under FAR. For Army, see the classification and discussion of "repairs" to facilities under Army Pamphlet 420-11, "Project Definition and Work Classification" at http://www.apd.army.mil/jw2/xmldemo/p420_11/head.asp

"1-6. Definitions

a. Repair. Repair means "to restore a real property facility, system or component to such a condition that it may effectively used for its designated functional purpose."

(1) When repairing a facility, the components of the facility may be repaired by replacement, and the replacement can be up to current standards or codes. For example, heating, ventilation, and air conditioning (HVAC) equipment can be repaired by replacement, can be state-of-the-art, and provide for more capacity than the original unit due to increased demand/standards. Interior rearrangements (except for load-bearing walls) and restoration of an existing facility to allow for effective use of existing space or to meet current building code requirements (for example, accessibility, health, safety, or environmental) may be included as repair.

(2) Correction of deficiencies in failed or failing components of existing facilities or systems to meet current Army standards and codes where such work, for reasons of economy, should be done concurrently with restoration of failed or failing components. When the facility is in an overall failing condition corrective work may involve increases in quantities or capacities and inclusion of systems or components not previously present in the facility. "

5. So, I think that replacing failed A/C systems in personal property could (should?) be performed under a supply contract, bearing in mind that there will be significant associated installation work performed by trades persons that resembles construction or repairs of air conditioning systems for real property buildings.

7. So -unless somebody can define what a "public building" or "Public Work" is, I think that one ought to check with the DOL to see if the DBA applies to the installation effort. I haven't been able to find the definitions yet. Can someone point me to the definition? Thanks.

This is what we came up with as well. To answer the questions people had, in no particular order, we are DoD and treat it like Joel said, personal property. The modular building is used as a supply wharehouse. it is treated by civil engineering as personal property and they won't touch it, (even though it is assigned a builiding number). To the person who replied that I should read his post, I did, and this work is not a repair of real property or public facility; it is classified as personal property as I said. The modular trailer was bought about 12 years ago under GSA contract. Guess it was a way to beat the system by obtaining warehouse space w/o real property. In retrospect it probably wasn't proper at the time but someone probably won an award for it or at least was a bullet on their performance report.

Turns out the IGE was way off and not that much labor was really involved. Had to run new refrigerant lines but electrical was already there and sheet metal was really not needed as they just needed to hook up to exisiting ducts. Was done as supply w/installation. Local HVAC firms, same ones that would work on your home systems, were the potential sources. Since it's now below $25K, we're just getting local SBs to provide lump sum quote to provide and install.

Thanks for the responses. My main concern was the construction aspect and D-B applicability. Even though the engineers classified as personal property, I wasn't convinnced that it still wasn't construction as the engineers are quick to make any determination that reduces their involvment or amount of effort on their part. The IGE was based on someone in engineering using RS Means but wasn't really appropriate for the actual requirements based on configuration. So, it is not awarded yet, but the way ahead is very simple.

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I disagree with Vern's assertion that a "building or work" cannot be a "thing". The definition of "building or work" lists what the terms include and they are all things. Further, the use of "building or work" in some instances in the FAR cannot reasonably be interpreted as the activity of "building or work". For example, the definition of "construction, alteration, or repair" at FAR 22.401 states:

“Construction, alteration, or repair” means all types of work done by laborers and mechanics employed by the construction contractor or construction subcontractor on a particular building or work at the site thereof, including without limitations—

(1) Altering, remodeling, installation (if appropriate) on the site of the work of items fabricated off-site;

(2) Painting and decorating;

(3) Manufacturing or furnishing of materials, articles, supplies, or equipment on the site of the building or work;

(4) Transportation of materials and supplies between the site of the work within the meaning of paragraphs (1)(i) and (ii) of the “site of the work” definition of this section, and a facility which is dedicated to the construction of the building or work and is deemed part of the site of the work within the meaning of paragraph (2) of the “site of work” definition of this section; and

(5) Transportation of portions of the building or work between a secondary site where a significant portion of the building or work is constructed, which is part of the “site of the work” definition in paragraph (1)(ii) of this section, and the physical place or places where the building or work will remain (paragraph (1)(i) in the “site of the work” definition of this section).

From the definition of "site of work" at FAR 52.222-6(a)(1):

(ii) The secondary site of the work, if any. Any other site where a significant portion of the building or work is constructed, provided that such site is—

From FAR 52.222-6( b )--

Laborers employed by the construction Contractor or construction subcontractor that are transporting portions of the building or work between the secondary site of the work and the primary site of the work shall be paid in accordance with the wage determination applicable to the primary site of the work.

From FAR 25.003--

“Construction material” means an article, material, or supply brought to the construction site by a contractor or subcontractor for incorporation into the building or work. The term also includes an item brought to the site preassembled from articles, materials, or supplies. However, emergency life safety systems, such as emergency lighting, fire alarm, and audio evacuation systems, that are discrete systems incorporated into a public building or work and that are produced as complete systems, are evaluated as a single and distinct construction material regardless of when or how the individual parts or components of those systems are delivered to the construction site. Materials purchased directly by the Government are supplies, not construction material.

Lastly, from FAR 23.206(d)

Unless exempt pursuant to 23.204, insert the clause at 52.223-15, Energy Efficiency in Energy-Consuming Products, in solicitations and contracts when energy-consuming products listed in the ENERGY STAR® Program or FEMP will be—

[...]

(d) Specified in the design of a building or work, or incorporated during its construction, renovation, or maintenance.

I agree with Vern that replacement of the air conditioning system would be an acquisition of "supplies" as that term is defined at FAR 2.101. However, that is not conclusive as to the applicability of the Davis-Bacon Act. I think that a CO should consider the DoL guidance that Carl posted (see post #24 above) and make a judgment call.

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To clarify somewhat, there are differences between prefab, modular buildings. Those which are simply trucked in and set up on their wheels or jacked up on simple precast piers or concrete blocks and hooked up to utility lines are trailers and remain trailers because they are not permanent construction. Then there is "permanent modular construction where the modules are shipped in and mounted on permanent - usually perimeter type - foundations. There are some other distinctions too but I don't have access to those today. Those are not personal property. Other prefab permanent modular construction includes things such as trusses, wall sections and stacked modules, which all become parts of a permanent building.

Don, please don't rely solely on Carl's extract from the DBA guidebook. It was taken out of the full context of the discussion. I think that it was referring to a supply type repair or installation to real property not to personal property. And the first part of construction definition at FAR 2.101links public buildings, public works OR OTHER real property together as ALL things which are real property. The DBA only applies to public buildings or works, which I think would be considered real property. I don't think that a temporarily placed trailer is real property. They are not considered to be real property or a permanent improvement in Alabama or other states that I lived in. They are taxed as personal property.

Of course all of this is conjecture without some specific written policy or guidance from the agency that makes the decisions concerning the DBA - the Department of labor. As the guidebook states, each project stands on its own according to the circumstances.

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Guest Vern Edwards

Don wrote:

I disagree with Vern's assertion that a "building or work" cannot be a "thing".

I had to read my posts two or three times to verify that I never said any such thing as "A building or work cannot be a thing." What I did say was that FAR does not define them as things.

Here is the first sentence of the definition of "building or work" as it appears in FAR 2.101:

“Building or work” means construction activity as distinguished from manufacturing, furnishing of materials, or servicing and maintenance work.

Note that the words are "building" and "work", both in the singular, and that both words can be understood to refer to the activities of building something and working on something. The clincher for me is that FAR EXPRESSLY states that the words building and work refer to a kind of activity -- construction.

The second sentence says:

The terms include, without limitation, buildings, structures, and improvements of all types, such as bridges, dams, plants, highways, parkways, streets, subways, tunnels, sewers, mains, power lines, pumping stations, heavy generators, railways, airports, terminals, docks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, canals, dredging, shoring, rehabilitation and reactivation of plants, scaffolding, drilling, blasting, excavating, clearing, and landscaping.

Note that the sentence lists both nouns ("buildings, structures, and improvements of all types...") etc., and verbals ("dredging, shoring, rehabilitation and reactivation... drilling, blasting... ") etc.

The third sentence says:

The manufacture or furnishing of materials, articles, supplies, or equipment (whether or not a Federal or State agency acquires title to such materials, articles, supplies, or equipment during the course of the manufacture or furnishing, or owns the materials from which they are manufactured or furnished) is not “building” or “work” within the meaning of this definition unless conducted in connection with and at the site of such building or work as is described in the foregoing sentence, or under the United States Housing Act of 1937 and the Housing Act of 1949 in the construction or development of the project.

In short, some kinds of activities, like manufacturing, are not "building" and "work" as defined by FAR.

Don believes that the words "building" and "work" refer to things. I say that FAR EXPRESSLY says that the words refer to activities with respect to various kinds of things. I did not say that the words "building" and "work" cannot refer to things (and I'm sure that they do in some contexts), but that FAR 2.101, which Don brought to our attention, expressly defines them as "construction activity." That is simply undeniable.

And that's all I've got to say about that.

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In post #26 Vern wrote "First, a building or work is a “construction activity,” not a thing." That's what I was responding to.

Further, I don't think that Vern's interpretation of the definition of "building or work" at FAR 2.101 is in harmony with how that term is used, in some places, in the FAR. If we are always to interpret the term as the act of constructing something, then there would be illogical consequences. My post #32 cites examples within the FAR of a building or work "being constructed" or transporting portions of "buildings or works" from one place to another. We cannot reasonably interpret the term to mean the act of construction in these instances.

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In post #26 Vern wrote "First, a building or work is a “construction activity,” not a thing." That's what I was responding to.

Further, I don't think that Vern's interpretation of the definition of "building or work" at FAR 2.101 is in harmony with how that term is used, in some places, in the FAR. If we are always to interpret the term as the act of constructing something, then there would be illogical consequences. My post #32 cites examples within the FAR of a building or work "being constructed" or transporting portions of "buildings or works" from one place to another. We cannot reasonably interpret the term to mean the act of construction in these instances.

Why not? Transporting materials or assemblies within the site of the work between adjacent storage areas or fab shops and the immediate building or construction site or transporting materials or assemblies from a secondary site that meets the definition of a secondary site of the work (e.g., an off-site fab shop set up specicially for the project off base to avoid base security restrictions or other on-base inefficiencies and government delays) to the building site is certainly part of the construction activity. Transporting fill material between the borrow area to the site is certainly part of the construction activity. DOL does make certain distinctions about when DBA applies to truckers or transportation of materials from suppliers but that isnt what was being described above.

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So the AC in the OP’s storage unit doesn’t work and his outfit wants to replace it. The work has been estimated to cost about $45,000.

Here is the original question:

In other words, should the replacement be a supply contract or a construction contract?

Now look at the definition of “building or work” that Don provided from FAR 2.101. It’s only three sentences long. First, a building or work is a “construction activity,” not a thing. Specifically, its construction activity that relates to a list of things as diverse as lighthouses and buoys (??? do you “construct” buoys???).

Now look at the first sentence of the definition of “construction” as defined in FAR 2.101:

Emphasis added. So, what’s the definition of construction in FAR 22.502?

Emphasis added. Now look at the definition of supplies from FAR 2.101:

Emphasis added.

Hmmm, my real property people say that the manufactured storage (facility, structure, unit, building, shed, etc., whatever) is not real property. Black’s Law Dictionary 9th ed. defines real property as follows:

Emphasis added.

The OP said that the storage thingy has no foundation (Post #3), so it is not attached to the land and presumably can be removed without injury to the land. Bottom line -- it’s personal property. Well, then, doing something to it cannot be construction according to the definition in FAR 2.101, which means that doing something to it cannot be a “construction activity” as used in the definition of “building or work,” which means that doing something to it is not a “building or work.”

Now, let me think, what would be easier to award and administer – a $45,000 construction contract or a $45,000 supply contract? Would classifying the acquisition as for supplies be clearly wrong? Not to my mind. In fact, it appears that calling it construction would be clearly wrong.

If I’m in charge of that contracting office I know what I’d do. I’d proceed with an acquisition of commercial items in a quick minute and with no doubts or regrets, unless someone showed me something quite specific and persuasive to the effect that DOL has already found that kind of project to be subject to Davis-Bacon.

Could I be wrong? Sure, I've been in this business long enough to know that things are complicated. But I'm not wrong until someone proves it.

Thank you Vern. That is a well thought out and complete breakdown of real property.

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Why not? Transporting materials or assemblies within the site of the work between adjacent storage areas or fab shops and the immediate building or construction site or transporting materials or assemblies from a secondary site that meets the definition of a secondary site of the work (e.g., an off-site fab shop set up specicially for the project off base to avoid base security restrictions or other on-base inefficiencies and government delays) to the building site is certainly part of the construction activity. Transporting fill material between the borrow area to the site is certainly part of the construction activity. DOL does make certain distinctions about when DBA applies to truckers or transportation of materials from suppliers but that isnt what was being described above.

i would add that pieces could be built off site and if later assembled into real property it defiitely is all considered "construction" and subject to FAR 36. But in my case it is personal property and not real property so it is not relevant in this particular instance.

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i would add that pieces could be built off site and if later assembled into real property it defiitely is all considered "construction" and subject to FAR 36. But in my case it is personal property and not real property so it is not relevant in this particular instance.

i agree, Regor and I agree with your approach. I thought that $30k for replacing 3 residential split A/C units seemed a bit high depending upon how much of the original equipment must be replaced and the locale in addition, the government pucker factor has to be considered.
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...Joel, you're right about the government estimate. Thanks. But I want to discourage you from calling the wage and hour division. You might put the OP in a bad spot. Let him do that if he wants to. It's not really your business. Besides, why should we be persuaded by an informal discussion with who knows who at wage and hour?

Vern, I didn't call DOL. but if I had called WHD, I would have asked for a written policy source on whether or not repairs to relocatable buildings that are classified as personal property (not permanent modular construction) are subject to the DBA under a supply contract. I'm kind of surprised that no one here piped in because the Army bought millions of square feet of these relocatables during the early stages of Army Transformation Program in the 2006-2008 timeframe. This approach was controversial and was scrutinized by Congress, the GAO and some IG organization, as I recall.

At any rate, the research effort here was an interesting endeavor for my dog and me.

Surely someone has made repairs to these relocatables during their usage.

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Guest Vern Edwards

My bet is that the treatment has been inconsistent. Some have handled it as construction and some have handled it as supplies not subject to the DBA.

When I ran an Air Force base procurement office, this kind of question came up occasionally. Is it supples with installation, services, or construction? In those days there was no internet and we couldn't do the kind of research and "harmonizing" that we can today. The boss (me) made a decision, usually favoring the easiest way, and got on with it. Just like Regor. If somebody official came along later and said we were wrong, we'd look surprised and say, "No $%@* !?"

But you gotta love the definition of "building and work". It is now my favorite goofy FAR definition. We should make a list.

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My final thoughts....

I appreciate all the comments and it has helped my view.

One missing link that leaves me curious based on experience of dealing with labor issues and the DOL (and that I mentioned in my first post) is the view of organized labor if prevailing rates in the area are based on organized labor, orgainzed labors view of where the work would fall and how organized labor's view would impact how the DOL might view whether the work is subject to Davis Bacon, SCA or neither. Important? Who knows.

I do question any reliance on the FAR definition found in Part 2 with regard to the issue of application of D-B. All defnintions would be those that are found in FAR Part 22 or FAR Part 22's underlying CFR. As such here are a couple of quotes from 29 CFR 5.2.

"(i) The terms building or work generally include construction activity as distinguished from manufacturing, furnishing of materials, or servicing and maintenance work. The terms include without limitation, buildings, structures, and improvements of all types, such as bridges, dams, plants, highways, parkways, streets, subways, tunnels, sewers, mains, power lines, pumping stations, heavy generators, railways, airports, terminals, docks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, canals, dredging, shoring, rehabilitation and reactivation of plants, scaffolding, drilling, blasting, excavating, clearing, and landscaping. The manufacture or furnishing of materials, articles, supplies or equipment (whether or not a Federal or State agency acquires title to such materials, articles, supplies, or equipment during the course of the manufacture or furnishing, or owns the materials from which they are manufactured or furnished) is not a building or work within the meaning of the regulations in this part unless conducted in connection with and at the site of such a building or work as is described in the foregoing sentence, or under the United States Housing Act of 1937 and the Housing Act of 1949 in the construction or development of the project.

(j) The terms construction, prosecution, completion, or repair mean the following:

(1) All types of work done on a particular building or work at the site thereof, including work at a facility which is deemed a part of the site of the work within the meaning of (paragraph (l) of this section by laborers and mechanics employed by a construction contractor or construction subcontractor (or, under the United States Housing Act of 1937; the Housing Act of 1949; and the Native American Housing Assistance and Self-Determination Act of 1996, all work done in the construction or development of the project), including without limitation—

(i) Altering, remodeling, installation (where appropriate) on the site of the work of items fabricated off-site;

(ii) Painting and decorating;

(iii) Manufacturing or furnishing of materials, articles, supplies or equipment on the site of the building or work (or, under the United States Housing Act of 1937; the Housing Act of 1949; and the Native American Housing Assistance and Self-Determination Act of 1996 in the construction or development of the project);

(iv)(A) Transportation between the site of the work within the meaning of paragraph (l)(1) of this section and a facility which is dedicated to the construction of the building or work and deemed a part of the site of the work within the meaning of paragraph (l)(2) of this section; and

(B) Transportation of portion(s) of the building or work between a site where a significant portion of such building or work is constructed, which is a part of the site of the work within the meaning of paragraph (l)(1) of this section, and the physical place or places where the building or work will remain."

and.....

"(k) The term public building or public work includes building or work, the construction, prosecution, completion, or repair of which, as defined above, is carried on directly by authority of or with funds of a Federal agency to serve the interest of the general public regardless of whether title thereof is in a Federal agency."

Interesting absence of "personal" and "real".

In the end it is DOL's enforcement issue and while Regor has done due diligence to determine what is applicable in the end Regor should not be surprised if during a DOL review for whatever reason that D-B might be found applicable.

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Guest Vern Edwards

Yeah, we get it, Carl. You think that DBA applies. You may be right.

Regor should be surprised if he hears from DOL on a $45,000 procurement. If he does, it is likely to be waaay after the job is done, and if they say that he should have applied DB, he should say, "No $%@* !? Well, write me up."

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In response to the Senate Committee on Armed Services direction In Senate Report 110-77 to GAO to review the subject of management and oversight of relocatable facilities, here is the Report number 09-585, dated June 2009, entitled "DOD Needs to Improve Oversght of Relocable Facilities and Develop a Strategy for Managing Their Use Across the Military Services". Because they are personal property, it seems that DoD had no idea how many there where or where they were. Some Installations either didnt know how many they have or incorrectly reported the numbers to OSD in preparation for the GAO report. Very interesting report. Several Congressional Committees had expressed interest and concern over the vast numbers of these trailers and other types of relocatables and what the Services were going to do with them. Installations that had no further use for them didnt share the inventory information with OSD. As a result, we now have the 21st Century version of WWII temporary facilities that may well be around for decades. All the Services have some with Army and Marine Corps having the most.

See the report at: http://www.gao.gov/assets/300/290862.pdf

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Why not? Transporting materials or assemblies within the site of the work between adjacent storage areas or fab shops and the immediate building or construction site or transporting materials or assemblies from a secondary site that meets the definition of a secondary site of the work (e.g., an off-site fab shop set up specicially for the project off base to avoid base security restrictions or other on-base inefficiencies and government delays) to the building site is certainly part of the construction activity. Transporting fill material between the borrow area to the site is certainly part of the construction activity. DOL does make certain distinctions about when DBA applies to truckers or transportation of materials from suppliers but that isnt what was being described above.

joel,

I wasn't trying to say that those activities are not construction activities. I was trying to point out that when the FAR uses the term "building or work" in a sentence like this:

"Transportation of portions of the building or work between a secondary site where a significant portion of the building or work is constructed..."

the term is referring to a tangible thing rather than an activity.

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Guest Vern Edwards

I agree -- when FAR uses them in a sentence like that. In such a case the "context" rule in FAR 2.101(a)(1) kicks in, and the definition of "building or work" in FAR 2.101( b ) -- which says that "building or work" means "construction activity" as opposed to other kinds of activities -- does not apply.

So why did you quote the definition in FR 2.101( b ) in Post #21?

:D

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I agree -- when FAR uses them in a sentence like that. In such a case the "context" rule in FAR 2.101(a)(1) kicks in, and the definition of "building or work" in FAR 2.101( b ) -- which says that "building or work" means "construction activity" as opposed to other kinds of activities -- does not apply.

So why did you quote the definition in FR 2.101( b ) in Post #21?

:D

I don't agree with that. The second sentence of the definition says the term includes, without limitation, a list of both things and activities. No need to invoke the context rule.

I quoted the definition in FAR 2.101 because in post #20 joel said he didn't have a regulatory or statutory definition of "public building or public work", so I was helping him out.

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Guest Vern Edwards

Actually, the FAR just quotes the definition that originated in 29 CFR many years ago.

I hope you know that the point that I am making is that the definition is lousy. You can say all you want that the definition says that buildings and works are things, but the fact is that it doesn't. It refers to things in the second sentence, but it also refers to activities, and in the third sentence it makes a distinction between one set of activities and another. You are interpreting it to refer to things, and while I think that's what the definition writers meant, that's not what they said. I won't let the definition writers off the hook, and as a professor, you shouldn't either. We should give them as much trouble as we can. When they start a definition with a sentence as clear and as strange as the one they have written, they deserve all the trouble we can give them. I'm done arguing with you about it. We've beaten it to death. I won't concede anything, and neither will you, and I'm content to leave it at that.

Frankly, I love that definition, and I think it's a great teaching tool.

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Vern - I know you are done but I have to clarify something important with regard to your post #43.

DOL won't care what Regor thought and I would bet DOL would say not one dang thing to Regor. What would actually happen, again by experience, is DOL would tell the contractor what the classifications should be, or have been, and require the contractor to pay any additional amounts due the employees, as applicable.

Even if you may think the value is too small for DOL to worry about stranger things have happened especially when a employee files a complaint with DOL regarding proper classification, D-B or SCA, and wages. Again by experience. Bottom line Joel was on track with regard to conversing with DOL but I would offer that the contractor might in fact be the one to do so as in the end the contractor will be the one held responsible.

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